(dissenting). “The constitutionality of a plain view seizure ‘must turn on the legality of the intrusion that enables [police] to perceive and physically seize the property in question’ ” (People v Brown, 96 NY2d 80, 89 [2001], quoting Texas v Brown, 460 US 730, 737 [1983]). Because I believe that the police action here was unjustified in its inception and, even if deemed justified, was not reasonably related in scope to the circumstances existing, the plain view seizure that followed was unconstitutional.
It is axiomatic that in order to justify the frisk of a defendant, such action must be supported by a reasonable belief, *809based upon specific and articulable facts, that the defendant has committed or is about to commit a crime or that he or she is armed and presently dangerous (see e.g. People v De Bour, 40 NY2d 210, 223 [1976]). Additionally, in determining whether a stop and frisk is reasonable, courts must undertake a dual inquiry and determine “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place” (Terry v Ohio, 392 US 1, 20 [1968]). It also is well established that the mere fact that a defendant is in the presence of persons known to have engaged in criminal activity does not provide reasonable suspicion justifying a frisk of the defendant (see People v Chinchillo, 120 AD2d 266, 268 [1986]). Put another way, a defendant’s mere propinquity to others independently suspected of criminal activity does not provide a legal basis for a frisk (see People v Otty, 223 AD2d 364, 365 [1996]). Finally, it goes without saying that a defendant may not be arrested on less than probable cause (see e.g. People v Hollman, 79 NY2d 181, 185 [1992]).
With these principles in mind, an examination of the testimony credited by County Court leads me to conclude that State Trooper Robert Kidder’s frisk of defendant was not justified at its inception or, if it could be deemed justified, was not reasonably related in scope to the circumstances presented. Kidder’s action, in my view, constituted an arrest that clearly was not supported by probable cause.
The testimony, credited by County Court, was brief and succinct. Six police officers, four plain clothed and two uniformed, arrived at a shopping mall in broad daylight to execute two arrest warrants. The four plain-clothed officers, with weapons drawn, approached a gold and tan Saturn automobile parked in a parking space in which one of the subjects of the arrest warrants sat in the driver’s seat and the other sat in the rear. Defendant sat in the front passenger seat. The individuals in the Saturn were told to keep their hands in view, which they did, and each was removed from the car. The officer who removed defendant from the car passed him off to the two uniformed officers with instructions to “secure him.” Kidder did so by handcuffing defendant and then frisking him, finding no weapons. Kidder did not then remove the handcuffs, but continued to restrain defendant by holding his left arm and observing the arrest of the other two persons. Realizing that he was not in a position to observe the other officers, Kidder moved to defendant’s right side and held his right arm to “maintain control of him.” After briefly observing the progress of the other *810arresting officers, Kidder looked down at defendant’s pant leg and noticed the controlled substance for which defendant was arrested.
As noted previously, the mere fact that defendant was in the presence of two persons known to have engaged in criminal activity does not provide reasonable suspicion justifying a frisk of his person (see People v Otty, supra; People v Chinchillo, supra). And while there was evidence that one of the persons for whom there was an arrest warrant had made inquiry of an undercover officer about the purchase of a firearm, there was no evidence that this individual appeared to “pass” something to defendant as the police approached or that defendant was acting in a suspicious or furtive manner justifying a belief that he may be armed and dangerous (see People v William II, 98 NY2d 93, 99 [2002]; compare People v Chestnut, 51 NY2d 14, 22 [1980], cert denied 449 US 1018 [1980]). So while defendant, as a passenger in the vehicle, could be required to get out of the vehicle while the police executed their warrants (cf. People v Robinson, 74 NY2d 773 [1989], cert denied 493 US 966 [1989]), the police were not entitled to detain him, much less forcibly detain him (see People v Robbins, 83 NY2d 928 [1994]; People v Campbell, 245 AD2d 191 [1997]), and the resultant “stop and frisk” was constitutionally impermissible, as well as all that came thereafter.
Alternatively, assuming that in the situation that existed the police officers were entitled to frisk defendant, the circumstances as testified to by the two police officers did not, in my view, justify a full-blown seizure as exemplified by the handcuffing of defendant and then physically restraining his movements after the frisk revealed no weapons. In short, the seizure was not reasonable in scope to the circumstances that initially justified the police action.
Finally, because I believe that defendant was subject to a de facto arrest without probable cause, the controlled substance seized must be suppressed. While I agree with my learned colleagues that the application of handcuffs is not always dispositive of whether the detention of a suspect on reasonable suspicion has been elevated into a full-blown arrest (see People v Allen, 73 NY2d 378, 380 [1989] [police confronting a defendant believed to be armed in a dark alley were permitted, for their safety, to handcuff the defendant and lead him into a lighted area where he could be frisked]), such action is, absent unusual circumstances, indicative of arrest. Here, there is no record evidence of a rapidly developing and dangerous situation necessitating the use of handcuffs and physical restraint. *811Indeed, from everything that may be gleaned from the record, these were routine arrests done in a public place in broad daylight. Accordingly, I am of the view that defendant was subject to a full-blown arrest and all that followed was unlawful. I would, therefore, reverse the judgment of conviction.
Ordered that the judgment is affirmed.